Rule 615 Exclusion of witnesses

This rule is identical with Fed. R. Evid. 615, the Advisory Committee's Note to which points out that "the efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion." See 6 Wigmore §§1837-1841 (Chadbourn rev. 1976); Harkins v. Ikeda, 57 H. 378, 557 P.2d 788 (1976); State v. Leong, 51 H. 581, 583, 465 P.2d 560, 562 (1970).

The authorities differ, however, on whether such exclusion is subject to judicial discretion or is mandatory on a motion of any party. The present rule adopts the latter position. This modifies prior Hawaii case law, which has held that exclusion of witnesses is discretionary. Hawaiian Ocean View Estates v. Yates, 58 H. 53, 564 P.2d 436 (1977); Yoshitomi v. Kailua Tavern, Ltd., 39 H. 93, 98 (1951).

The present rule does not address the question of the appropriate judicial penalty in the event of violation by a witness of an exclusion order, as this is a procedural rather than an evidentiary concern. However, the Hawaii Supreme Court addressed this point and held in Yoshitomi that the trial court's refusal to admit the testimony of a witness who had disobeyed the exclusion order was within the scope of sound judicial discretion. 39 H. at 98-99. In Leong, however, the court distinguished Yoshitomi by implication, holding that the trial court's refusal in a criminal case to admit the testimony of a defense witness who had violated the exclusion rule constituted reversible error, violating the defendant's "constitutional right to have witnesses testify in his favor." 51 H. at 586, 465 P.2d at 562-63.